20190411 TZHC Mwanza

'. IN THE HIGH COURT OF TANZANIA AT MWANZA CRIMINAL APPEAL NO. 371 OF 2017 [Appeal from the Judgment of the DistrictCourt of Chato in Criminal Case No. 244/2016, Hon. Kato District Resident Magistrate] . ,.GODSON GILBERT .......... : .................................•...... APPELLANT VERSUS // ·. . JUDGMENT 11th April & 11th April 2019 :· M.M. SIYANI, J. / ··•... '-. ·,. The appellan( Godso:n Gilbett'was arraigned and charged at Chato District .. '· .. ·,. , / --:.___ --~- _<" Court,JoY Rape··coh~raryto-section 130 (1), (2) (e) and 131 of the Penal 1'"" ',, \., .... I ., Cod~ Cap 16 RE.2002,:·when the charge was read over to him, he pleaded > \--~ \ •• ; • "It is\·trbe'~- Afcordingly, the Court recorded. ",~ . a plea of guilty. The Prosecutor was .then invited to adduce the summary of facts which indicated that on 11th August 2016 at about 11: 15hrs, the appellant while at Kalema village in Chato District, had sexual affairs with Izumba d/o Kefule (pseudo name to conceal her identity), a girl of 16 years of age 1 and a student of standard si~ (6) at Kitela Primary School. The ~ppellanJ admitted the facts to be correct. The court proceeded to convict him for Rape as charged basing on his own plea of ·guilty and accordingly sentenced to thirty (30) _imprisonment. Aggrieved by the said decision, this appeal which contains six (6) grounds of complaints was preferred. / However, all of those grounds may properly boil. down to only one (1) ground as follows:- \ \. \ \ /'. --. 1. (hat the trial Magistrate //erred /i]:)aw "-,, \~lld \\ \\ fad by ---.___________ ·, '\ convicting the appellant/on'·equivoca/plea};fguilty. . _/ . ·. ·- •.. __ :_ •·. At the hearing of this appeal, ! . the appellant -~·'. \Yhb.appeared in person and ,,_ ·•~/ ' . . ~ • • ,/ v. , \ •. ,II'. ', . ,,/ , unrepresented, adopted his 'grounds ·or·appeal and left it for the court to /_/_ '. '\ .. ··.,_ // :--" _,.,./ decide. On th~___ot:her 'ha'rJd, Ms -Changale, the learned State Attorney _/· ... -- ..• -.,.___ / __ '\ "' ·-----..... . represented;:th~ Republic/re$pondent Despite being aware that the law .-,··-·-c- ''•,.. >·~.,./,... ·:=.---,- -'... . . doe?dfot ailb~----~n<~peafagainst convict_ion on plea of guilty, the learned r·. , \<\·'\_\. ·-<. ..,.. ~ . Stat'ei~~orney ~asteried to support the appeal on the reason that a plea . \<\. >>. '·~~ '' ·.\';-, ,r' ).·/ . . of "It is 'tr:u:g::::being what the trial court recorded as a plea of guilty was not unequivocal. According to Ms Changale, such a plea was insufficient and even the facts read over to him following that plea did not reveal that the appellant had canal knowledge of the victim girl. In view of the leaned State Attorney the word "sexual affairs" used by the trial magistrate, 2 might not necessary mean " sexual intercourse~., which is an essential . ( ingredient of the offense .of rape. It was therefore argued that the facts of the case adduced by the prosecutor and which led to the appellant's con_viction on plea of guilty did not disclose the- offense of rape and so the· appellant's plea might be resulted from failure to understand the nature · and elements of the said offense. In s~pport of her p~)i0.n, the learned counsel referred to me the Court of Appeal deci~t./J~#ohn . \\ /~~ V Faya Vs Republic, Criminal Appeal No. ~o~m'o7,.J'~) the Court . . . ., . . ~-~,,~\)· t d m s1m1 ar c1rcu~stan~~a~l~~1t 1s ~ue ca.nno o bserve. necessa.nly lead to a conclusr.1-on,..th.at the-.appellar:it admitted all ingredients .. ~~A.'\) of the charged offense.· · · : •~ ' , V · · . ·d· (/_" .. ~~"- -~ 20 the ch_ar:ge~ana~~z. ptec;tth_e.,;prosecutro.n's facts as true. As correctly noted 200~y~ by M s ~ e ; ~et,I:~ 360 ( 1) of the Criminal Procedure Act cap against conviction where such convictiori is a result of the appellant's plea of guilty to the charged offense. The section thus RE states: . 360.-(1) No appeal shall be allowed in the case of any accused person who has pleaded guilty and has been convicted on such 3 a. plea by subordinat_e court except as to the extent or legality of ( -= the sentence It follow therefore that since the appellant pleaded guilty and convicted . . as a result of such plea, then ·serve for an appeal against sentence, no appeal would h_ave been allowed against conviction. However in my view, for that estoppel to apply against the appellant 1t ~ust_ - ~___be establlshed . . ~-"'"" ~~)'? that the p. lea was unequivocal. This court _has ~-a1ff_·,_·erent>-.occ,sions . ~ ~·- ~" highlighted circumstances under whic~n appeill~on fi!i~uilty against . . ~~~\\ . ,.~"~- . . . convIctIon may be allowed. In Law?ence'~pn1ga-V:s Repubhc (1980) . ~~ '- -...,..- ,. ,.,-_ < '\..,~, TLR 166 Samatta, J. as he tf::len~was, hels that~ 0 . (( ,A- ~':? -- An-accused per5_P,p W!J.{},!}ad1iJ>Jn.~G-•onvicted by any court of an . . /"' "' ·,,L:t~ .1 offence on his own:(lecJ~ilf:¼ may appeal against the . . convictioR'ig';;;;-CO'{(J on the foHowinggrounds: . 1. That t~ing i;to~consi~rii-ion the admitted facts his plea was . ~ a , ' \ ' : ; , , ~ r unfinished and for that reason, the a · bwer coiift"-e~d>in law in treating it as plea ofguilty/ .~ ~ i, . ~- that, he pleaded guilty as a result of a mistake or . ~..,,__,/ misa/lPTenension: 3~ That the charge laid at his door disclosed an offence not known to la~· and . that upon the admitted fa~ he cou/d not in law_ . have been convicted of the offence charged [Emphasis supplied] 4 Gathering . from the ·above decision, . it is possible, in my view ,,vhere the . ( ·__ _ conviction was a result bf an equivocal Plea, for- an aggrieved. person to appeal. As indicated before, this appeal is an attempt by the appellant to · challenge the plea of guilty recorded during the trial. In the present case the trial court recorded the words "It is true" as the appellant's plea. That .. · ~ plea was insufficient. It cannot be said with certainty ~h'at the appellant ·. admitted. In RVs Yonasani Egalu and Others ~)~~)?Yrage · "' \ . \ / : ~~-....,.'v' . 67, decision which- was quoted with approvaL:J:,y t~'e\GdGi-tof Appeal of . 0 ' ~ ';\ . Tanzania in John fFaya V.s Repu.;•,~~.• (supt"'---~a');-1:b~~fu}dt: Eastern African . ~~~ ~v- (( ";0 Court of Appeal observed t.hefollpwih§:~·- . " J .- (_ · In any case in which~fnv~,is tl1w1y to proceed on a plea ofguilty, it is ~~~s~~h/y that every constituent of the charg,,rzcshould be~expla1nedto the accused but that he should be reqt};~)mit ~ every constituent and that what he · · ~s;.?f!K$hoiJJ¥~ in a form which will satisfy an appellate •.( ~~ "~- . :~ourt that1e fuf$ _understood the charge and pleaded gui~ty _to e\,t;JY elemeAt of it. unequivocally. . . . ' The appellant was charged for rape under section 130 (1) (2) (e) of the Penal Code. For easy of reference I have reproduced the. section as hereunder: 5 130 (1) It is t;1n offence for a male person to r_ape a girl or a ( woman. (2) A male person commits the of(ence.of rape if he has sexual inter~ourse with a girl or a woman under circu1J7stances falling. under any.of the fol(owing descriptions: (a)N/A (b)·N/A ·. -~ (c)N/A . -~.: (d) N/A ~~~_> \\ "--.. - , 'v/ (e} with or without her conse.nt wh~he. is~';!tkler·y3/ghteen . r~ -~~ . years ofage/ unless the woman is117s~wife who is :fifteen or more 1 . A ~~~" \.) . vears ofage and 1s not separatea from,the man. ['The under/Jned . ~mpdnas~etsh.uppb1i~] Th e wor mg m e ~ t ' ~ _-b~l··ty f h . ea ._qve 13~Is1on mu1c;a es a poss, 11 o avmg sexua I . t ercourse 1n . ·th ~l~d w~._g,r age.. .1 .. ~· 6f,·d · ears-o · --y. · 1·k, e I.zum.ba w1·th ou t comm,·tt·m. g . an. 011ense " Gl Z,V &fLW~~h t~~bl. h . h. .. . d to th e 11 ~-· _ 1s ~ss1 .e w ere t e woman 1s mar~,e accus~(3n: :fu~ if it is possible for one to have sexual · t f(. in er~~. s _e_ w1 :\t-.li•:.a~ woman " _age.d. 16 ~nd· yet comm,·ts no 01 ,ense under u "~ /), section h10~(,1✓) (2)(e) then the question that comes is what did the appellant mean when he pleaded "It is true" to the charge. Did he adm.it to have sexual intercourse with the said girl? Or did he admit to have committed the offense of rape? In his mitigation· and believing that there was consent, the appellant argued that what happened between him the 6 victim girl was not rape. The facts· then ought to have indicated -that , , . Izumba was not the appellant's wife to constitute statutory · rape by eliminating the possibility of a defense of existence of a marriage .. In my considered opinion, the plea of "It is true" in the circumstances· of . , this case was incomplete or unfinished as the mere facftl'.lat the appellant • _,· ·,. '•-... 'I,'• /Ir·,, . ,, -, // might have had sexual affairs with Izumba does _npt by.its~if_ c0tistitute rape under section 130 (1) (2) (e) of the _Pen~l Code/Uniess·it is proved ........ '·. . that tne. woman was not his wife, the Cobrt . ought-to-have inqui~ed more . from . the appellant whether he admitt~d-.com'tnJtting . ·., rape or having sexual ,,/ ', ' ·. I / -_ , ·- .. . . intercourse ·with the named girl. What th~ appellant admitted to be true I. . .//', \. ,"l~,. \ • > therefore is unkndwrt>. This cease therefore fits the first scenario in Lawrence tJt(iriQ.;i,,~:, ~~~bli: ~:~pra) that "taking into consideration .<:, . )"; >• / C • , the ad1))Jtte_ff'faicts:;his:J5Jea•-V\faS imperfect, ambiguous or unfinished and, l/ --- ---_/---,·,,<'C·'.',_ --a . for (bat reasoh;:t~etti:c1J court erred in law in treating it as a plea of guilty." \\,, ) ' "·~.' <;-,~~~~-::_c'"~'·>r" ~ ·. All that said and done, I find merits in this Appeal. The trial court wrongly entered a plea of guilty which in my view was ambiguous capable of attracting many questions. I therefore allow this appeal and since the conviction of the appellant was based on the purported plea of guilty, I quash the proceedings and set aside both the conviction and sentence 7 imposed _-thereto. It is further ordered ·that the records of trial Court ·in _· ( Criminal Case No. 244- of 2016 be -remitted to Chato District Court for retrial before another magistrate of competent Jurisdiction and should the new trial lead to the appellanfs conviction, the time th~ appellant has · spent in prison serving the current sentence should be taken into account when sentencing him. Order accordingly. ~ - - th 0 ~~ \ \_V~ ">·~;;;/ pr\0,H,2019 : at MWANZA this 1-1 Day,bf~A-· . ~ '-'~ "·" ..:,, ' .. ·-· . '~ . .N.I ' "-.;v) ·· · BGE ( / 8